1. Introduction
The concept of human rights is evolved as a vehicle to protect people from the organized power, especially of the state. It is paradoxical that the state which was established as a political institution to fulfill people’s aspirations sometimes scuttles or completely takes away the rights of the people. This happens because of the emergence of the notion of sovereignty of the state as a consequence of which the state becomes an entity vested with supreme power and the people are subordinated to it. Protection of rights of humans has become necessary due to such misuse of power by the State. The story of human rights can be traced back to the establishment of sovereignty of God under Judaic-Christian religious ideology of governing people under the guise of their protection and welfare. It is substituted by the state sovereignty due to misuse of the supreme power by papacy. Absolute sovereignty of the state developed in the Dark Age was also misused by dictators paving way for the establishment of sovereignty of people in democratic political set up culminating in the recognition and protection of human rights. It is not only the state but all other state-like institutions that tend to interfere with the basic rights of human beings. If we go back to the origin of human civilization, tribal leader enjoyed supremacy over his tribal community. There was no way for the tribal community to get protected from the might of its leader. There was no moral basis for his rule, though it was based on sheer need of protecting the tribal group from rival groups. The might of tribal leader and other rulers of primitive societies was challenged by religions and power is transferred to religious leaders about two thousand five hundred years ago. The power is transferred to supra-human entity called God and his agents wielded the power leading to its misuse paving way for secular state. Since misuse of power continues even after establishment of sovereign state, limitation on the supreme power of the state by division of the power into different organs of the state is brought about under the thumb rule of rule of law. A legal framework of providing human beings the rights that are absolutely necessary to live as human beings culminated thereafter. These absolutely necessary rights were identified as the rights to life, liberty, equality and dignity. Human rights can be seen as primarily ethical demands. They are not principally legal, proto-legal or ideal-legal commands. Though they often inspire for legislation that is not the constitutive character of human rights[1]. From these basic aspects, the story of human rights is built up and has taken proportions that were not even thought of at the time of the conception of this idea. In contemporary societies human rights has taken a prime position in law, politics and society. Enormous growth of human rights has given rise to a number of debates on its concept, theory, structure, institutions, process and application. A big question that arises out of this debate is: can the province of human rights be determined jurisprudentially? An attempt is made in this essay to identify frontiers of human rights and determine the concept.
2. The Concept of Rights
Understanding of the concept of ‘rights’ is necessary as a background to build a comprehensive concept of human rights reflecting the real world view. In fact, almost all legal material revolves around this concept of rights in its wider sense of the term because wide varieties of legal relationships are based on these rights. Legal philosophy is inconceivable without an examination of the fundamental ideas of rights and justice. Rights, legal and moral, pervade the law and legal system, and are thus a central concern of jurisprudence.[2]
The question of what rights are should be answered in such a way as to highlight the entire tradition of rights discourse, in which a variety of different theories have offered incompatible views. There are various attributes associated with the concept of rights. This can be understood by looking into both identity and implication aspects of the question. Firstly, rights are perceived as such requirements of great importance that override the public good or utilitarian considerations. Right in this sense implies an imperative and nondiscretionary requirement. Secondly, rights are associated with individuals and their special worth; they protect the individual against the consequences of uninhibited pursuit of collective or social goods. Their individualistic flavor is often explained by reference to values such as dignity or autonomy. Finally, rights are often characterized as having a certain legalistic and even antagonistic character. Right-holders do not merely request their rights; they claim or demand them. There are different uses of the term ‘rights’. Rights can be legal, that is, protected by legal rules; social, that is, backed by societal conventions; institutional, that is, acknowledged and enforced by institutions; they can be negative, that is, rights to other person’s omissions or forbearances; or positive, that is, rights to other person’s actions.[3]
Right is described as a sort of an advantageous position of a legal person. If it is an advantage conferred or provided by or under law, then we call it a legal right. A right can be moral also, if it is an advantage under the rules of morality. The idea of right is based on arguments of policy and principles. Arguments of policy lead to political decision aimed at achieving collective goal of the community. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.[4] An individual has a right to some opportunity or resource or liberty if it counts in favor of a political decision. Therefore, a political right is an individuated political aim.[5] These rights may be absolute or relative, abstract or concrete, institutional or background, depending upon the type of political policy of a given State. Legal rights are built up in a political state by different processes that are recognized in that state. In the first instance, it is generally by way of legislation in the form of the constitution and statutes. Secondly, it is in the form of the common law. There can be many other forms of building up of rights such as international commitments or pressures, equitable principles, etc. A well blossomed institution of rights is often considered as a sine qua none for maintenance of equilibrium in a given society and theories of justice use equilibrium as the basis for their arguments.
There are two competing theories as to the nature of rights. The first is the will theory[6] who view the purpose of law as being to grant the widest possible means of self-expression to the individual, the maximum degree of individual self-expression. This theory is closely related to ideas of sovereignty so that the only way reconciling conflicting wills is by postulating a superior will which can overcome all opposition. It is also closely related to ideas of moral individualism. Individual discretion is the single most distinctive feature of the concept of rights.[7] The second one is the interest theory[8] which argues that the purpose of rights is not to protect individual assertion but certain interests. Rights are said to be benefits secured for persons by rules regulating relationships. The particular strength of interest theory is that it covers all types of rights (the so-called socio-economic rights such as health care, education, a minimum income) as well as liberties. The will theory is happier with the latter.[9] A right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. All that is right or wrong, just or unjust, is so by reason of its effects upon the interests of mankind, that is to say upon the various elements of human well-being, such as life, liberty, health, reputation, and the uses of material objects. If any act is right or just, it is so because and in so far as it promotes some form of human interest.[10] This implication of the concept of right is the staring point for a number of human rights as the former implication is the basis of human rights of discretion from subordination to the idea of sovereignty.
Rights are of different types when they are viewed in their wider sense of the term. Based upon the distinctions made by Bentham, Austin, Windscheid, Terry and Salmond, a detailed account of various types of rights is given by Hohfeld. Rights are normative statements dealing with different kinds of legal relations. Hohfeld developed a scheme to explain these relationships in terms of ‘correlatives’, ‘opposites’ and contradictories of correlatives. The claim that some other person has to do something is described as “right stricto sensu”. That other person is said to have a ‘duty’ towards the person having the right. The second type of right is one in which the person is free to do or refrain from doing something. This is described as a “liberty”. It is known as privilege and it confers a special position and accurately captures some “privileges”. The best example is the rule that a judge does no legal wrong in speaking slander while acting in his judicial capacity. There are other privileges also like the one doctor has to perform abortion that would otherwise be unlawful. The word right is used in the third sense where a person has the ability to change legal relationships. This is known as “power”. Powers are usually parasitic on rights stricto sensu and privileges; for example the owner of property can sell it because he has title to it and title is complex of rights stricto sensu and privileges of liberties. There are other powers independently of other sorts of rights; for example, a trustee with a duty not to transfer trust property to another has the power to effect such a transfer if the purchaser acts without notice and in good faith.. the last type of right is known as “immunity” which is absence power to produce a change in legal relations. With these types of rights normative security can be achieved in various ways.[11]
Jurisprudentially, rights are distinguished in eight different ways indicating their plurality nature. Rights are distinguished as: perfect and imperfect rights, positive and negative rights, rights in rem and rights in personam, proprietary and personal rights, rights in re propria and rights in re aliena, principal and accessory rights, primary and sanctioning rights and legal and equitable rights.[12]
No doubt that we are living in the age of rights. Human rights, animal rights, moral and political rights play a leading role in public debate. But in addition to right-based theories, some moral and legal philosophers adopt either duty-based or goal-based theories. The differences between the three is worth noting, and may be illustrated as follows. You are opposed to torture because of the suffering of the victim (this is rights-based), or because torture debases the torturer (duty-based), or you may regard torture as unacceptable only when it affects the interests of those other than the parties involved (utilitarian goal-based)[13]. These three approaches indicate that the concept of rights has different dimensions. Various dimensions of the general concept of rights are reflected in the concept of human rights also.
3. Concept of Human Rights
Let us now turn to the specific concept of ‘human rights’ from the general concept of ‘rights’. The concept of human rights has acquired a prominent place in contemporary political and legal debate today. Turn on the news or read a newspaper: issues of human rights are ubiquitous. The idea rests on the claim that each of us as a human being, regardless of our race, religion, gender, or age, is entitled to certain fundamental and inalienable rights – merely by virtue of our belonging to the human race.
[14] What do you mean by the notion called human rights? Human rights are central to the legal thinking in the modern world. One cannot think of rights without attaching these to some person or the other. Persons may be either natural (human beings) or artificial. These artificial persons are fictional entities having their existence only under the eyes of law. These artificial persons include State, companies, corporations, etc. Even deities are considered as legal persons capable of having rights in some legal systems. All these entities possess rights. But we do not describe the rights held by such legal persons as human rights. It is only the rights held by human beings that are viewed as human rights. However, not all those rights held by the human beings that come under the domain of human rights. It is only those rights which are ‘inherent’ in the human beings and ‘inalienable’ that are described as human rights. These rights can be seen as primarily ethical demands. Arguments for uniformisation of law in the twentieth century resulted in creation of standard laws at international level in a number of legal areas such as business and trade, environment, intellectual property, biological resources, air and space, human rights, gender issues, racial discrimination, etc. Human rights is an important area in this uniformisation process of law at the international level. The political aim of UNO is to secure to every human being certain basic rights that are already secured in almost all civilized nations. These basic rights are the rights to life, liberty, equality and dignity.[15] Human rights jurisprudence is built up upon these political principles at the international level with the ideal of securing justice to all. The reasoning on which these political principles are based is ethical demand for their securing rather than legal demand.
Generic idea of human rights can be explained with the help of four distinguishing features. First and foremost human rights are rights, imposing duties or responsibilities on their addresses. Secondly, human rights are plural, addressing a variety of specific problems such as guaranteeing fair trials, ending slavery, ensuring the availability of education, and preventing genocide. Thirdly, human rights are universal, applicable to all human beings irrespective of their age, sex, religion, race, colour, nation, etc. fourthly, human rights are of high priority, for they are matters of paramount importance and their violation is an affront on justice. Additional four features can also be added to the above four features. These features are represented by thinkers and are debatable as salient features. However, these additional features will help us in familiarizing ourselves with the diversity in the trajectory of human rights. These additional features are: that the human rights are inalienable rights; they are minimal rights; they always include moral rights; and they serve some sort of political function.
The journey on the road of human rights is not very smooth as it is wrought with many road blocks, pot holes and diversions often circuitous. There has been a growing rhetoric in the later part of twentieth century and the present century as to the protection and promotion of human rights in consequence of overall acceptance of the community of nations that human rights are the non-negotiable facets of human life.. This is understandably because of the flagrant violation of human rights during the two great wars in the twentieth century which witnessed violations of human rights perpetrated by authoritarian regimes on their own subjects and enemies. This cry has become very sensitive and subtle in the midst of terrific piling up of nuclear bombs and other weapons of mass destruction by the developed and some developing countries, international terrorism, state sponsored terrorist activities, and exploding privacy of human beings through information and communication technology revolution. These major disturbing developments at the international level and new philosophical methods of the post-modern thinking have together made way for putting an emphasis on uniformisation of human rights paving way for new jurisprudential thinking with regard to human rights. The argument is for a strong and enlarged platform of human rights.
The question that arises is as to what a theory of human rights must address. Amarthya Sen lists a number of questions that are required to be addressed by a theory of human rights[16]: What kind of a statement does a declaration of human rights make? What is it that makes human rights important? As rights, what obligations are entailed? How are human rights best promoted? Must legislation be the primary way of implementing human rights? Indeed, is it a necessary pre-condition? Is it reasonable to argue that the second generation rights are human rights? How can arguments for human rights be defended (or challenged)? Given cultural diversity and pluralism in practice, can it really be said that human rights are universal? Or are they invoked to impose Western (capitalistic) values on the rest of the world? He answers the questions in his own way. A brief survey of human rights philosophy (See next section) will enable us to search for suitable answers to these questions.
Human rights have passed through three generations. The first generation were mostly the negative civil and political rights as developed in the 17th and 18th centuries by English political philosophers like Hobbes, Locke, and Mill . They are negative in the sense that they generally prohibit interference with the right-holder’s freedom. A good example is the First Amendment to the American Constitution, which makes it unlawful for the legislature to restrict a person’s freedom of speech.[17] These rights are effectively created by imposing correlative duties on the state. The second generation consists in the essentially positive economic, social, and cultural rights, such as the right to education, food, or medical care. The state in the case of these rights is having a more positive duty to provide facilities for the enjoyment of these rights by the people. The third generation of human rights are primarily collective rights which are foreshadowed in Article 28 of the Universal Declaration which declares that ‘everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized’. These rights indicate the collective responsibility of the peoples of the world to ensure such social and international order. These ‘solidarity’ rights include the right to social and economic development and to participate in and benefit from the resources of the earth and space, scientific and technical information (which are especially important to the Third World), the right to a healthy environment, peace, and humanitarian disaster relief.
4. The Philosophy of Human Rights
The philosophy of human rights is built with the objective of examining the underlying basis of the concept of human rights and critically looking at its content and justification. Several theoretical approaches have been advanced to explain how and why human rights have become a part of social expectations.[18]
However, emergence of human rights philosophy is not so sudden as that of the emphasis laid on their protection and promotion as it happened in the middle of the twentieth century and onwards. The philosophy of human rights germinated along with the inception of human civilization itself. It can be traced back to the Jewish theocratic doctrine of ‘the direct rule of God’ over the people and insistence on the independence of an individual. A hypothetical covenant with the God was established to make room for individual’s freedom and thereby secure him independence from others including the state. A noteworthy feature of this philosophy is that amidst these lofty assertions of freedom, independence and equality, its insistence on duty. Liberties were ascertained as the residue that remain after the prescription of duties.[19] Recognition of the need to protect human freedom and human dignity is alluded to in some of the earliest codes, from Hammurabi's Code in ancient Babylon (around 1780 BCE).[20]
In ancient India, the original Vedic concept of Dharma is a fine blend of the rights and duties of an individual and it stood like a colossus during the whole period of Indian civilisation. The entire Veda has been declared to treat of Dharma (Vedo Dharma mool), i. e. acts of duty.[21] The concept of Dharma is clearly central to the whole of Indian civilization and is pluralistic in nature. This concept passed through several transitions of meaning and significantly understood to be the privileges, duties and obligations of man.[22] In Buddhism, the basic misconception that causes us so much trouble is the belief that what is lacking is something outside myself, whereas the only truly satisfactory resolution of my dukkha (sorrow) is to realize that there is no discrete “I” separate from other people and the rest of the world. We must understand that we are not merely interconnected, but parts of each other, manifestations that reflect each other.[23] If our basic predicament is cognitive rather than ethical, what is needed is not punishment but instead some type of educational process (in the broadest sense) that encourages personal transformation. Buddhist psychology understands the sense of self as impermanent and malleable; it emphasizes the force of habit in place of autonomous self-determination.[24] According to Buddha, we all have a variety of human tendencies, some of which (greed, ill will, the delusion that we are separate from each other) should be minimized, while others (generosity, loving-kindness, the wisdom of our non-duality) should be encouraged and developed: that is how we can reconstruct ourselves. Genuine freedom is not a matter of liberating the individual will (often motivated by greed, ill will, and/or delusion); it is a result of overcoming that kind of willfulness—not to be gained simply by removing external restraints—and, ultimately, a consequence of awakening to our non-duality and interdependence.[25] The story of Angulimala[26] within the Buddhist tradition highlights the only reason Buddhism accepts for punishing an offender is to help reform his or her character. This is restorative justice. Community-based restorative justice is needed to be developed for the following three reasons: First, it is what people want, because it empowers them. Second, it is what victims want because they get to participate. And third, it is what the public wants because it speaks to that internal sense of justice that we all share. All of these reasons make restorative justice good politics.[27] Therefore, ancient India evolved a concept of right that is blended with the duty and obligation. Ancient Indian philosophy is duty-oriented rather than right-oriented.
Greek period witnessed emergence of natural law philosophy with the stoics who tried to balance the freedom of man with authority and positive law.[28] Law of Nature is identified with a moral duty.[29] They did not advocate complete freedom from power and even went to the extent of justifying the most unacceptable institution of slavery on several grounds under the garb of relative natural law. While in golden age of absolute natural law there were no distinctions in terms of family, slavery, property or government, these institutions were later considered as necessary due to moral deterioration of mankind. They argued that the relative natural law would lead to legislation guided by reason. The Stoics stressed the ideas of individual worth, moral duty and universal brotherhood.[30] Current versions of uniformising globalization and endeavours to create a global legal order marked by observance of human rights and rule of law clearly relate back to, and feed on, early ancient idealized understandings of universal principles and the equality of man.[31] We can see similarity in ancient Indian and Grecian thinking relating to human rights. Traditional Tibetan jurisprudence also provides an example of how well a Buddhist-based jurisprudence can function to maintain social order and harmony. The presupposition of Tibet’s legal system was that conflict is engendered by our incorrect vision of situations, a vision itself caused by mental afflictions. In Tibetan Buddhist teachings there are six root afflictions (desire, anger, pride, ignorance, doubt, and incorrect view) and twenty secondary afflictions (including belligerence, resentment, spite, jealousy, and deceit) that cause us to misperceive the world and engage in disputes. To say it again, this is a Socratic-like understanding of human conflict: our unethical behavior is ultimately due to our wrong understanding, which only a spiritual awakening can wholly purify.[32]
During Roman period, orators like Cicero, advocated for equality of men under universal law, but said that maximum liberty of action is best guaranteed by legal limitation (De Republica). He uses the word jus naturale comprising those half-legal, half-ethical rules which express the principles of human justice, because they have a special bearing upon the relations of men living in society upon their duties to one another.[33] The emphasis is on duty rather than on right in building human relations. Another important development during the Roman period is evolution of the concept of jus gentium developed by Roman magistrates known as praetor peregrinis. It is a body of general legal principles, developed from case to case, derived from foreign laws and customs which appeared capable of general application. Seeds for the uniformised human rights laws of the present can be said to be sown by Roman magistrates under this new class of laws. St. Augustine evolved the theory of supremacy of the Church as an exponent of divine law and justified its interference with institutions of positive law as long as these are unjust.[34] The Church distinguished between the absolute Law of Nature and the relative Natural Law. In the former men are free from the State, they own all things in common, and they are equal to one another. Later is a sort of half-way house between an absolute ideal and actuality.[35] Though supremacy of the Church as a protagonist of law is advocated, freedom and equality as ideals are not ignored.
During Middle Ages, St. Thomas Acquinas also preached for equality within the framework of a stable society. In Thomist system, the state is a natural institution, born from elementary social needs of men and the purpose of human laws is to be useful to men, to further the commonwealth, whilst at the same time being a part of divine and natural law.[36] However, according to Menski, late medieval developments in legal philosophy are tolerant about unjust human law to such an extent that the Church exposed itself increasingly to criticism for lack of vigilance about justice or, lack of respect for human rights, especially in relation to slavery.[37] Teutonic law stressed the fact that law belonged to the community, to the folk, and was thereby the common possession of every one. Even feudalism, while prescribing duties owed by a vassal to his lord, inspired the idea of ‘right’ by saying that no more could be demanded of him than was due.[38]
During the period of Renaissance and Reformation emphasis was laid on the individual and free will and human liberty.[39] This movement was supported by the reformation, a deep-running critique of Catholic Church domination, which resulted in various forms of Protestantism, separate national Churches, and generally strengthened individual freedom of conscience.[40] This is the time for concretization of human rights in the secular form. With the dilution of Church’s supremacy, the absolute rulers demanded the legitimation of their claims to omnipotence over their people. On n the other hand, the individual, now seeing himself without the bonds of an authoritative order, demanded rights to safeguard and protect his personality and interest. The rising commercial middle class wanted protection of its rapidly increasing property interests.[41] Hobbes, in his writings, shifts the emphasis from natural law as an objective order to natural right as a subjective claim based on the nature of man and thus prepares the way for the later revolution of individualism in the name of “inalienable rights.” The cardinal principle of natural law for Hobbes is the natural right of self-preservation, which he transfers to the ruler wielding absolute power in an imaginary social contract. From his political and legal theory emerges modern man, self-centered, individualistic, materialistic, irreligious, in pursuit of organized power.[42] We can see the germ of a concept of natural rights, the idea that man may make certain legitimate demands on his fellow men. Locke contributes to the emancipation of the individual in a different manner. In his scheme of social contract individual has a natural inborn right to “Life, Liberty and Estate.” The purpose of the government was the protection of human entitlements. He argued that unlimited sovereignty and its abuse were the violation of natural law.[43] The social contract, in his view, preserved the natural rights to life, liberty, and property, and the enjoyment of private rights and the pursuit of happiness engendered, in civil society, the common good. Whereas for Hobbes natural rights come first, and natural law is derived from them, Locke derives natural rights from natural law – i.e. from reason. Hobbes discerns a natural right of every person to everything, Locke argues that our natural right to freedom is constrained by the law of nature and its directive that we should not harm each other in ‘life, health, liberty, or possessions’. Locke advocates a limited form of government: the checks and balances among branches of government and the genuine representation in the legislature would, in his view, minimize government and maximize individual liberty.[44]
The idea of human rights violation by the state can lead to revolution for restoration of the violated political order is his signal contribution towards the evolution of human rights as an inescapable tool of governance by the state. Rousseau propounded a social contract theory that is closer to Hobbes, but without emphasizing on the sanctity of property. For him the social contract is a mystical construct by which the individual merges into the community and becomes part of the “general will”. Together, these three thinkers build a concept of the individual’s inalienable rights to life, liberty and estate, and the purpose of government is to protect these rights.
Thomas Paine wrote his most popular text, Rights Of Man in 1791 as a defense of the French Revolution. His rights theory builds on Locke and Rousseau, and concludes that a man deposits in the 'common stock of society' his natural right to act as his own judge to enforce the law of nature. Paine held that the 'power produced from the aggregate of natural rights... cannot be applied to invade the natural rights which are retained in the individual'. Reading Paine reveals what it is that makes human rights such an enduring concept.[45]
In the eighteenth century age of reason, David Hume challenged the understanding of human reason by naturalists and laid foundation of distinguishing between natural and social sciences and heralded a new anti-metaphysical, scientifically minded and utilitarian era.[46] Transcendental idealism in Germany made an inquiry into human mind and narrated that man is a rational free willing being distinct from nature. Kant distinguished between morality and law and said that compulsion is essential to law and a right is characterized by the power to compel. He distinguished between legal rights and legal duties. As to rights, he distinguishes between natural rights and acquired rights. But he recognizes only one natural right: the freedom of man in so far as it can co-exists with everyone else’s freedom under a general law. Equality is implied in the principle of freedom. From this follow a number of rights pertaining to the individual, in particular the right to property.[47]Fitche states the elementary rights of the individual which must be protected by the state, as they are the necessary condition of personal existence; these are the integrity of body, property and self-preservation, and the law must regulate the measure of their protection. In other words, the rights to be protected by the state are: the right to live and the right to work. The state has therefore the duty to see that the necessities of life are produced in a quantity proportionate to the number of citizens, and that everyone can satisfy his needs through work.[48] Thus, individuals’ rights are correlated to the State’s duty. In Hegel’s dialectic idealism, the human spirit which projects itself in the human world is governed by itself and is consequently free. The free will, that is the rational will, thinks in institutions, in which it projects itself. Hegel’s triad is abstract right, morality and social ethics. The sphere of abstract right is the sphere of those rights and duties which belong to human beings as persons simply, not as citizens of state. These rights include property, contract and wrong. Morality is the sphere of the inwardly directed human will, and social ethics, which comprises family, civil society and state, is the synthesis of abstract right and morality.[49] Human rights are viewed as abstract and are synthesized in the state, which is an absolute ideal. This is how human rights are subordinated to the interests of the state.
The 20th century witnessed a renaissance in natural law theory. This is evident in the post-war recognition of human rights and their expression in declarations such as the Charter of the United Nations, and the Universal Declaration of Human Rights, the European Convention on Human Rights, and the Declaration of Delhi on the Rule of Law of 1959.[50] Human rights jurisprudence of the 20th century is the basis for the present institutionalized presence of human rights. Vigorous jurisprudential thinking added more complexity to the understanding of human rights. After citing Maritain’s view on the common nature of man and men’s rights depend upon this common nature, Macdonald views this as a complete mistake. She says that it is the emphasis on the individual sufferer from bad social conditions which constitutes the appeal of the social contract theory and the “natural” origin of human rights. Natural rights were so considered in order to emphasise their basic or fundamental character. For words like freedom, equality, security, represented for the defenders of natural rights what they considered to be fundamental moral and social values which should be or should continue to be realized in any society fit for intelligent and responsible citizens.[51] In Fuller’s Morality of Law thesis we find a link between the principle of legality and moral value in his contention that a legal system rests on a tacit reciprocity between lawgiver and subject. This reciprocity offers the individual fair opportunity to plan in the confident awareness that governmental officials will not arbitrarily clamp down on his undertakings and acknowledge his capacity for autonomous decision-making ensuring the dignity of the individual.[52] Hart, in his thesis of minimum content of natural law, states certain facts of the “human condition” which must lead to the existence of minimum universal rules. These facts of human condition are human vulnerability, approximate equality, limited altruism, limited resources and limited understanding and strength of will. In the light of these inevitable features of human condition, there follows a natural necessity for certain minimum form of protection for persons, property and promises. Thus, every legal system has to reflect these minimum of human rights and protect them.[53]
John Finnis sets up the proposition that there are certain basic goods for human beings which are objective values and they consist of life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion, which are self evident and for the common good.. Law is built up upon these with the requirements of practical reasonableness. He says that the maintenance of human rights is a fundamental component of common good. He argues that most human rights are “subject to and limited by each other and by other aspects of the common good”. These aspects, he acknowledges, can probably be subsumed under “a very broad conception of human rights but are fittingly indicated by expressions such as public morality, public health and public order. He believes in some absolute human rights: the right not to have one’s life directly as a means to any further end; the right not to be positively lied to in any situation in which factual communication is reasonably expected; and the related right not to be condemned on knowingly false charges; and the right not to be deprived, or required to deprive oneself, of one’s pro-creative capacity and the right to be taken into respectful consideration in any assessment of what the common good requires.[54]
Quarter century later, Murphy builds a natural law theory that “law is backed by decisive reasons for compliance”. These decisive reasons are for the “common good”. He prefers the aggregate view of the common good as against the instrumentalist view and the distinctive good view. The aggregate view sees the common goods belonging to particular citizens. This produces the “common good principle” viz., every person has an obligation to do his share for the common good.[55]
Margaret Mead builds her human rights philosophy anthropologically. She says that in asking what conceptions of human rights are universal to all known cultures, it is necessary to recognize that we can only ask this question about the assemblage of societies that have been observed and recorded. The culturally regulated relationship among persons within a given environment is characterized both by certain persistent regularities, due to species-specific characteristics of human beings, and a wide variety of forms having historical uniqueness. It is only those areas of human life which are most closely based in our common biological heritage in which we may not expect still to find, among existing cultures, instances which alter existing generalizations. Nevertheless, the systematic observations of constancies among all known cultures make it highly probable that the kinds of cultural behavior found in all of them have been integral part of their survival system up to the present time. Natural rights to life, property and reproduction are recognized with profound variations in interpretation.[56]
John Rawls introduced the idea of a political conception of human rights in his book, The Law of Peoples (1999). The basic idea is that we can understand what human rights are and what their justification requires by identifying the main roles they play in some political sphere. This sphere is international relations (and, secondarily, national politics). Rawls was attempting a normative reconstruction of international law and politics within today's international system, and this helps explain Rawls's focus on how human rights function within this system. Human rights within interpersonal relations are not part of this sphere. Rawls says that human rights are a special class of urgent rights. Besides saying that human rights are rights that are high priority or “urgent,” Rawls also accepts that they are plural and universal.[57] The justificatory process for human rights and the other principles of the law of peoples is analogous to the one for principles of justice at the national level that Rawls described in A Theory of Justice (1971). Instead of asking about the terms of cooperation that free and equal citizens would agree to under fair conditions, we ask about the terms of cooperation that free and equal peoples or countries would agree to under fair conditions. Rawls holds that under these conditions these representatives will unanimously choose principles for the global order that include some basic human rights. Rawls advocated a modest list of human rights, one that leaves out many fundamental freedoms, rights of political participation, and equality rights. He did this for two reasons. One is that he wanted a list that is not parochial to the liberal democracies and that countries around the world would find attractive. The second reason is that he viewed serious violations of human rights as triggers of the permissibility of various kinds of intervention by other countries, and only the most important rights can play this role.[58]
Most recent is Charles Beitz's[59] account of human rights in which he shares many similarities with Rawls's but is more fully developed. Like Rawls, Beitz deals with human rights only as they have developed in contemporary international human rights practice. Beitz suggests that we can develop an understanding of human rights by attending to “the practical inferences that would be drawn by competent participants in the practice from what they regard as valid claims of human rights.” Observations of what competent participants say and do inform the account of what human rights are. The focus is not on what human rights are at some deep philosophical level; it is rather on how they work by guiding actions within a recently emerged and still evolving discursive practice. The norms of the practice guide the interpretation and application of human rights, the appropriateness of criticism in terms of human rights, adjudication in human rights courts, and—perhaps most importantly—responding to serious violations of human rights. Beitz says that human rights are “matters of international concern” and that they are “potential triggers of transnational protective and remedial action.”
In the era of Legal Positivism, though Bentham attacked the doctrine of natural rights, he held that rights could be evaluated by reference to the principle of utility and thereby shifted the basis of rights from morality to positive law. His important contribution comes in his recently discovered early book where he distinguishes not only rights and duties but makes a distinction between rights, liberties and powers.[60] Though he rejected any idea of natural rights, his analysis still left scope for the values which he sought to incorporate, such as liberty, equality or property.[61] Following the tradition of his master, Austin builds six categories of principles, notions and distinctions and in the first group, he lists the notions of duty, right, liberty, injury, punishment, redress with their various relations to one another. He regards rights and obligations as necessary principles.[62] Austin took up the distinction between liberty and right, but his dicta on the subject are not very precise and is of minor importance compared with the basic concepts of “right” and “duty” which are closely linked with his theory of state and sovereignty. Bierling developed the Benthamite approach by distinguishing between claim, liberty and power. Salmond[63] developed this classification by distinguishing between legal advantages and legal burdens. In the former class he distinguishes between rights in the strict sense, and liberties, power and immunities; the latter includes duties, disabilities, etc. Hohfeld constructed a more elaborate scheme of jural correlatives, opposites and contradictories of correlatives by identifying four advantages and four disadvantages: right, liberty, power, immunity, duty, no-right, liability and disability.[64] This scheme was modified by Kocourek whose scheme of concepts was closer to Salmond’s distinction between legal advantages and burdens.[65] All these scholars belonging to analytical tradition transformed natural rights into positive legal rights.[66] The various rights, duties, permissions and prohibitions follow from the sovereignty of an ordered positive legal system.[67] These rights are ensured, limited and enforced by a host of sanctioning rules. Analytical positivism was restated on a theoretical philosophical basis by Kelsen as a hierarchy of normative relations. In his pure theory of law, Kelsen robs law of all its content (including human rights) and concentrates on its pyramidical structure of law. Rights and duties are nor entioties existing in themselves, but merely the expression of legal norms related to the concrete conduct of individuals.[68] In Hart’s thesis of law as a union of primary and secondary rules, primary rules of obligation are duty creating rules and secondary rules of recognition are power conferring rules.[69] The duty is for the individual whereas the power is vested in the state. Dworkin’s attack on legal positivism is crucially founded on his concern that the law ought to ‘take rights seriously’. Rights trump other considerations such as community welfare. Individual rights are seriously compromised if, as Hart claims, the result of a hard case depends on the judge’s personal opinion, intuition, or the exercise of his strong discretion. My rights may then simply be subordinated to the interests of the community. Instead, Dworkin contends, my rights should be recognized as part of the law. His theory thus provides more muscle to the defense of individual rights and liberty than legal positivism can deliver. Law, according to Dworkin, consists of principles and policies rather than rules because they have a dimension of weight or importance. Principles describe rights; policies describe goals. But rights are trumps. They have a ‘threshold weight’ against community goals.[70] His rights thesis is based on a form of liberalism that derives from the view that ‘government must treat people as equals’. It may not impose any sacrifice or constraint on any citizen that the citizen could not accept without abandoning his sense of equal worth.[71]
Human rights are compromised and balanced with other public and social interests in sociological jurisprudence. Roscoe Pound, in his social engineering theory, sought to build an efficient society by balancing individual, public and social interests (rights) with the aim of bringing about satisfaction of maximum of wants with minimum of friction and waste. Individual interests identified by Pound for protection are: interests of personality, interests of domestic relations and interests of substance. Interests of personality include the protection of physical integrity, freedom of will, reputation, privacy freedom of belief and opinion. Interests in domestic relation include the legal protection of marriage, maintenance claims, and the legal relations between parents and children. Interests of substance include the protection of property, the freedom of succession in testamentary dispositions, freedom of industry and contract, and the consequent legal expectation of promised advantages. Almost all of these interests are included in the domain of human rights in the modern period. Some sociological jurists, like Duguit, overemphasized duty as against individual’s rights. He has observed that the outstanding fact of society is the interdependence of men and this has always existed and becomes more and more widespread as life grows more and more complex and as man’s mastery of the world increases. Interdependence, therefore, is inescapable and organisational efforts for cooperation between people is a social necessity. This is Duguit’s principle of social solidarity and in furtherance of it each one has to perform his duty and that is the core of law.[72]
Critical Legal Theories challenged claims made by the traditional theories effecting human rights jurisprudence. Postmodern Legal Theory expresses an impatience with the modern state’s bureaucratic suffocation of the individual, the overarching presence of the state, the increasing globalization of markets, and universalizing of values. It has also witnessed a new pragmatism. A down-to-earth set of goals – economic, ecological, political – is accompanied by the advocacy of a more inclusive community that emphasizes the special predicament of women, minorities, the dispossessed, and the poor. A popular expression is ‘empowerment’. The postmodern concern with the ‘subject’ generates, especially in the context of the law, some fascinating accounts of the individual as moral agent, as rights-bearer, or simply as player in the legal system.[73]
Feminist legal theory has been remarkably successful in remedying the overlooking of the position of women by traditional jurisprudence. It has made a comprehensive analysis of the many inequalities to be found in the criminal law, especially rape and domestic violence, family law, contract, tort, property, and other branches of the substantive law, including aspects of public law. There are at least four different approaches in feminist legal theory: Liberal Feminism, Radical Feminism, Postmodern Feminism and Difference Feminism.[74]
Liberal Feminism prizes individual rights, both civil and political. Liberals assert the need for a large realm of personal freedom, including freedom of speech, conscience, association, and sexuality, immune to state regulation, save to protect others from harm. Liberal feminism perceives individuals as autonomous, rights-bearing agents, and stresses the values of equality, rationality, and autonomy. Since men and women are equally rational, it is argued, they ought to have the same opportunities to exercise rational choices.
Radical feminism, on the other hand, rejects what it regards as the liberal illusion of the neutrality of the law. It seeks to expose the reality behind the mask so that women will recognize the need to change the patriarchal system which subjugates them. Radical feminism seeks to expose the domination of women by ‘asking the woman question’ to expose the gender implications of rules and practices that might otherwise appear to be impartial or neutral.[75]
The Postmodern Feminism attempts to expose the gender implications of rules and practices that may appear to be neutral. They challenge the legitimacy of the norms that claim to represent the community, especially in cases of rape and domestic violence. Through consciousness-raising, they seek to understand and reveal women’s oppression.[76]
Difference feminism is uncomfortable with the liberal feminists’ attachment to formal equality and gender. This position, it maintains, undermines the differences between men and women. Instead, difference feminism endeavours to reveal the unstated premises of the law’s substance, practice, and procedure by exposing the miscellaneous kinds of discrimination implicit in the criminal law, the law of evidence, tort law, and the process of legal reasoning itself. This includes an attack on, for example, the concept of the ‘reasonable man’, the male view of female sexuality applied in rape cases, and the very language of the law itself. It argues that equality is a more subtle and complex objective than liberals allow.[77] Difference feminism focuses upon the positive characteristic of women’s ‘special bond’ to others, while radical feminism concentrates on the negative dimension: the sexual objectification of women, through, for example, pornography, which MacKinnon describes as ‘a form of forced sex’.[78]
Critical Race Theory added yet another perspective to human rights. Its mainspring is the need to expose the law’s pervasive racism; privileged white, middle-class academics, in its view, cannot fully uncover its nature and extent. Those who have themselves suffered the indignity and injustice of discrimination are the authentic voices of marginalized racial minorities. The law’s formal constructs reflect, it is argued, the reality of a privileged, elite, male, white majority. It is this culture, way of life, attitude, and normative behaviour that combine to form the prevailing ‘neutrality’ of the law. A racial minority is condemned to the margins of legal existence. It diverges most radically from full-blown postmodernist accounts in respect of the recognition by at least some of its members of the importance of conventional ‘rights talk’ in pursuit of equality and freedom. This retreat from the postmodernist antagonism towards rights signifies an apparent readiness to embrace the ideals of liberty, equality, and justice.[79]
John Murungi’s thesis on African Jurisprudence is worth noting: “Each path of jurisprudence represents an attempt by human beings to tell a story about being human. Unless one discounts the humanity of others, one must admit that one has something in common with all other human beings…what African jurisprudence calls for is an ongoing dialogue among Africans on being human, a dialogue that of necessity leads to dialogue with other human beings. This dialogue is not an end in itself. It is a dialogue with an existential implication…”.[80] But he also states: “what is elemental in every jurisprudence is the conception of being human that is presupposed. It is precisely for this reason that it is herein claimed that African jurisprudence is what is at stake in being human for Africans. If jurisprudence is to be understood as a science, it is to be understood, in its African context, as a science of being human as understood by Africans.[81] This understanding leads us to think that human rights vary from society to society based on their cultural contexts. What is also conceivable in Murungi’s conception of jurisprudence is the fact that what connects jurisprudence in all cultures is its connection to an understanding of the internal aspects of humanity. This implies that as a human-centered discipline, the common element that features in all jurisprudence is what those jurisprudences have to say about man. Thus, at one level it can be said that jurisprudence is a unified subject since man is man everywhere and in all cultures.[82]
A peep into the Islamic jurisprudence is necessary without which our discourse on the jurisprudence of human rights becomes incomplete. Shariah, the basic law of Islam, is a religious document dealing with the relationship between the God and human beings. It is non-optional and mandatory for all Muslims living in Islamic States as well as other countries. As in Christian religious law, there is hardly any human rights aspects in this system. Unlike Christian law, Islamic jurisprudence is not confined to commands and prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it is concerned not only with what a man must do or must not do, but also with what he ought to do or ought not to do, and the much larger area where his decision to do or to avoid doing something is his own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the scope of Western jurisprudence.[83] Some seeds of human rights of moral type can be found here.
With colonization of Islamic states, Shariah was progressively restricted to family law and other areas are governed my secular laws. All Islamic societies today live under national constitutional regimes (including countries that do not have written constitution such as Saudi Arabia and Gulf states) and legal systems that require respect for certain minimum rights of equality and nondiscrimination of all citizens.[84] The wholesale importation of foreign legal concepts and institutions to Islamic countries and the uneasy combinations that this has brought about in legal education and judicial practice are among the sources of general discontent. These and many other factors are in turn accountable for the Islamic revivalism or resurgence which many Muslim societies are currently experiencing.[85] Adoption and respect for strong human rights is still an expectation. Islamic terrorism, which has showed its ugly head in the contemporary world has come as a big challenge to an integrated and cosmopolitan human rights regime.
In all these and some of the other legal theories, a common feature that appears is the attempt to balance rights of individuals (human rights) with the societal interests. This aspect is more clearly visible in the revived natural law philosophy. Thus, the jurisprudential basis for a balanced and comprehensive concept of human rights is strongly laid in the theoretical framework of human rights. Different approaches and understanding of human rights in these theories is not only because of the premises upon which it is built up, but also because of the pluralistic nature of human rights..
5. Human Rights Law
Law relating to human rights has developed at national, regional and international levels. Plurality of human rights is very well reflected in human rights law. When we talk about human rights today, it is not in its moral or philosophical sense but in its legal sense at international, regional and national levels. A brief account of three level development of human rights law is necessary to understand their compatibility or otherwise.
International Human Rights Law
The content of human rights is usually understood by reference to the legal catalogue of human rights developed through international texts. This legal approach responds to demands for the concrete protection of inherent natural rights, and goes some way to meeting the criticism that we are simply talking about desires and selfishness. The shift to positive law also fixes these rights in an agreed written form. The historical development of the international protection of human rights deserves our attention as it tells us much about how and why states use human rights in international relations. The human rights story in the 20th century has multiple layers. At one level, human rights were invoked as a rationale for fighting the world wars. At another, rather more academic level, the consideration of international recognition of rights is for individual persons and associations.[86]
Prior to the UN Charter, human rights per se were not a subject for international law. Certain minority groups – racial, ethnic, religious – were guaranteed certain rights by way of special treaties, such as those concluded in Albania, Finland, and Poland and customary international law had long recognized freedom from slavery, but there was no general attempt to regulate human rights, owing to the assumption of complete sovereignty that underlay the society of states. How a state treated its own citizens was, as a legal matter, no other state’s affair. The League of Nations was established in 1919 which was supposed to preserve international peace and security through the collective action of its member states against any state that resorted to war or the threat of war. Three important developments took place under the League of Nations, i.e., the recognition of minorities rights through minorities treaties, the development of international workers' rights, and the work on the abolition of slavery.[87] But these developments are not viewed as a clear emanation of human rights law at the international level
Establishment of UNO in 1945 is the starting point for emergence of human rights internationally in clear terms. The Charter of the United Nations calls for “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language and religion ” and announces as one of the purposes of the United Nations “ to achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”[88]
The first international pronouncement on a comprehensive human rights law came from the UNO in 1948 under the title The Universal Declaration of Human Rights, guaranteeing inalienable and inviolable rights of all members of the human family as a matter of fundamental principle. It was adopted on December 10, 1948 and was the first step towards the codification and progressive development of international human rights law. It sets out the human rights and fundamental freedoms to which all men and women are entitled, without distinction of any kind. It recognizes that the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world. It recognizes fundamental rights which are inherent to every man, woman and child. These rights include right to life, liberty and security of person; right to an adequate standard of living; right to seek and enjoy asylum from persecution in other countries; right to freedom of opinion and expression; right to education, freedom of thought, conscience and religion; and right to freedom from torture and degrading treatment.
It proclaimed that every individual and every organ of society shall strive by teaching and education to promote respect for these rights and freedoms and secure their universal and effective recognition and observance at national and international levels. It enlists various civil and political rights, economic, social and cultural rights and collective rights, starting from the right to life to the right to participate in the cultural life of the society. It is only in Article 29 that stress is laid on duty where under it is stated that everyone has duties to the community in which alone the free and full development of his personality is possible. The State is also permitted to enact laws limiting the exercise of these rights and fundamental freedoms provided their sole purpose is to secure due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society.[89] This has resulted in a shift towards ‘right oriented’ societies. In the canvassing of human rights by national and international agencies, however, the provisions laid down in Art. 29 are undermined. This can be described as one of the major causative factors for a tilt in the balance of concept of human rights. Only ‘rights’ aspect is emphasised and ‘duties’ aspect, which are rudimentarily placed in the document, is not brought to light. This has become the basis for various international instruments of the UN bodies and their action plans including judgments of the ICJ in cases such as the Colombian-Peruvian Asylum case (1950) and the Anglo-Iranian Oil Co. case (1952). The tilt of the pendulum in favour of rights in the wake of the tragic experiences of the two World Wars is quite understandable. But the positioning of the pendulum on that extreme side even much later is not quite convincing.
The UNO has adopted two Covenants in 1966 and these Covenants came into force in 1976. These are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These Covenants contain a longer and much more comprehensive list of rights than those enumerated under the Universal Declaration. Restrictions imposed on the rights in these instruments are also on the same lines as in the Universal Declaration.[90]
The International Covenant on Civil and Political Rights provides for the following human rights: right to self determination, life, liberty and security; freedom of movement, including freedom to choose a place of residence and the right to leave the country; freedom of thought, conscience, religion, peaceful assembly and association; freedom from torture and other cruel, inhuman and degrading treatment or punishment; freedom from slavery, forced labour, and arbitrary arrest or detention; right to a fair & prompt trial; and right to privacy.
Optional Protocol I to the International Covenant on Civil and Political Rights establishes the procedure for dealing with communications of individuals claiming to be victims of violations of any of rights set out in the Covenant. It also provides State Parties with the option to recognise the additional competence of the Human Rights Committee in receiving and examining communications from individuals. It allows individuals or groups who have exhausted local remedies to petition the Committee directly about violations. In other words, it supplements the measures of implementation by providing for the machinery to handle complaints from individuals. These activities of the Human Rights Committee established under the Covenant in protecting human rights were described as praise-worthy.[91]
Optional Protocol II to the International Covenant on Civil and Political Rights, 1989
envisages the abolition of death penalty. It disallows reservations, except reservations concerning the application of the death penalty in time of war for most crimes of military nature committed during wartime. The States are required to include in their reports to the Committee information on measures taken in this regard. Many countries, including the USA, were criticised by human rights protagonists for not abolishing the death penalty in their administration of criminal justice. This can be considered as another glaring example of over-emphasising the human rights of criminals as against their duties to respect the life, person and property of others. What can be ascertained from all these positive laws is that this kind of disjointed assertion of human rights without proper networking with other jural concepts like duties etc. is responsible for creating disturbances in the administration of justice, especially in the area of criminal justice. The steep increase in the more serious types of criminal offences can be ascribed, among other things, to this liberal human rights philosophy pursued by the international fori.
The International Covenant on Economic, Social and Cultural Rights provides for the following human rights: right to work in just and favourable conditions; right for social protection; right for adequate standard of living including clothing, food and housing; right to highest attainable standards of physical and mental health; right to education; and right to enjoyment of the benefits of cultural freedom and scientific progress.
The United Nations Human Rights Council, 2005 is created to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights. It is a subsidiary body of the General Assembly and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter. Forty-seven of the one hundred ninety-one member states sit on the council, elected by simple majority in a secret ballot of the United Nations General Assembly. Members serve a maximum of six years and may have their membership suspended for gross human rights abuses. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations. Independent experts (rapporteurs) are retained by the Council to investigate alleged human rights abuses and to provide the Council with reports. The Human Rights Council may request that the Security Council take action when human rights violations occur. This action may be direct actions, may involve sanctions, and the Security Council may also refer cases to the International Criminal Court (ICC) even if the issue being referred is outside the normal jurisdiction of the ICC.[92]
There are many other international instruments covering various facets of human rights. The core instruments are briefly described hereunder.
The first one is the International Convention on the Elimination of All Forms of Racial Discrimination, which came into force in 1969. It prohibits any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[93]
The Convention on the Elimination of All Forms of Discrimination against Women is designed to ensure that the women have equal access to political and public life as well as education, health, and employment. Under this Convention, which entered into force in 1981, states are also obliged to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.[94]
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987 defines torture and insists that any party to the treaty undertakes obligations to take measures to prevent acts of torture in any territory under its jurisdiction; not to return any person to a state where there are substantial grounds for believing that that person would be in danger of being subjected to torture; and to ensure that acts of torture can be prosecuted in the courts of that state even though those acts occurred abroad.[95]
The Convention on the Rights of the Child,1990 defines a child as 'every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier'. It seeks to protect children from practices that particularly endanger their welfare, including economic exploitation, trafficking, illicit use of drugs, and all forms of sexual exploitation and abuse. The guiding principles of the Convention are the need to take into account the child's best interests, non-discrimination, and respect for the wishes of the child.[96]
The International Convention on the Protection of the Rights of All Migrant Workers and their Families, 2003 seeks to provide protection to migrant workers and their families and provide certain rights. Unfortunately, the states that have accepted obligations under this treaty are mostly states that export migrant workers rather than those that host them. This diminishes the effectiveness and scope of the treaty obligations and means that those states that host migrant workers avoid the reach of this treaty and the prospect of supervision by the monitoring body.[97]
Two new treaties were adopted at the end of 2006. The first is the International Convention on the Rights of Persons with Disabilities. Key rights concern the right to make decisions, the right to marry, the right to have a family, the right to work, and the right to education. States are obliged to refrain from discrimination on grounds of disability and to take measures to eliminate such discrimination by 'any person, organization or private enterprise'.[98]
The second treaty is the International Convention for the Protection of All Persons from Enforced Disappearance. It establishes the prospect of national prosecutions and extraditions for the crime of enforced disappearance. This crime is defined as: the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.[99]
In addition to the main and core instruments, there are many other universal instruments relating to human rights on wide varieties of specific areas indicating the exponential growth of the frontiers of human rights. There is hardly any area that is left outside the domain of human rights. A catalogue of such instrument classified into subject areas is presented here.
The Right of Self-Determination: There are three instruments in this area. They are: United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples; General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"; and International Convention against the Recruitment, Use, Financing and Training of Mercenaries
Rights of Indigenous Peoples and Minorities: This area also has three instruments: Declaration on the Rights of Indigenous Peoples; Indigenous and Tribal Peoples Convention, 1989 (No. 169); and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
Prevention of Discrimination: This being a very wide area has a number of international instruments. They are: Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); International Convention on the Elimination of all Forms of Racial Discrimination (ICERD); Declaration on Race and Racial Prejudice; Convention against Discrimination in Education; Protocol Instituting a Conciliation and Good Offices Commission to be responsible for seeking a settlement of any disputes which may arise between States Parties to the Convention against Discrimination in Education; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; and World Conference against Racism, 2001 (Durban Declaration and Programme of Action).
Rights of Women: There are four instruments in this specific area: Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW-OP); Declaration on the Protection of Women and Children in Emergency and Armed Conflict; and Declaration on the Elimination of Violence against Women.
Rights of the Child: In this field we can find at least five instruments: Convention on the Rights of the Child (CRC)’ Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC-OPSC); Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC-OPAC); Minimum Age Convention, 1973 (No. 138); and Worst Forms of Child Labour Convention, 1999 (No. 182).
Rights of Older Persons: A single instrument in this area is: United Nations Principles for Older Persons.
Rights of Persons with Disabilities: There are six international instruments in this area. They include: Convention on the Rights of Persons with Disabilities; Optional Protocol to the Convention on the Rights of Persons with Disabilities; Declaration on the Rights of Mentally Retarded Persons; Declaration on the Rights of Disabled Persons; Principles for the protection of persons with mental illness and the improvement of mental health care; and Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
Protection of Persons Subjected to Detention or Imprisonment: This is such an important area of human rights in which violation is rampant. Therefore we can find a number of international instruments to ensure protection of human rights in this area. The instruments include: Standard Minimum Rules for the Treatment of Prisoners; Basic Principles for the Treatment of Prisoners; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; United Nations Rules for the Protection of Juveniles Deprived of their Liberty; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT); Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Safeguards guaranteeing protection of the rights of those facing the death penalty; Code of Conduct for Law Enforcement Officials; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); Guidelines for Action on Children in the Criminal Justice System; United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Basic Principles on the Independence of the Judiciary; Basic Principles on the Role of Lawyers; Guidelines on the Role of Prosecutors; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; Declaration on the Protection of All Persons from Enforced Disappearance; Basic Principles and Guidelines on the Right to a Remedy and Reparation; International Convention for the Protection of All Persons from Enforced Disappearance; United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules); and Updated Set of principles for the protection and promotion of human rights through action to combat impunity.
Social Welfare, Progress and Development: This is an area that provides certain positive facilities to the people to lead civilized human life. The instruments in this area are: Declaration on Social Progress and Development; Universal Declaration on the Eradication of Hunger and Malnutrition; Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind; Declaration on the Right of Peoples to Peace; Declaration on the Right to Development; Universal Declaration on the Human Genome and Human Rights; and Universal Declaration on Cultural Diversity.
Promotion of Human Rights: There are a few instruments aimed at the promotion and protection of human rights. These instruments are of general nature created to ensure that human rights are effectively promoted and protected in all countries. They are: Principles relating to the status of national institutions (The Paris Principles); Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms; and United Nations Declaration on Human Rights Education and Training.
Marriage: On the specific area of marriage, there are a couple of instruments: Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages; and Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.
Health: Declaration of Commitment on HIV/AIDS is an important instrument relating to right to health.
Right to Work and to Fair Conditions of Employment: Employment Policy Convention, 1964 (No. 122) is the only instrument in this area.
Freedom of Association: Two instruments relating to this field are: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
Slavery and Related Areas: In the areas of slavery, slave-like practices and forced labour, following instruments are created: Slavery Convention; Protocol amending the Slavery Convention signed at Geneva on 25 September 1926; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105); Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.
Rights of the Migrants: Couple of instruments in this area are: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICPMW) and Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.
Nationality, Statelessness, Asylum and Refugees: There are five instruments in this domain: Convention on the Reduction of Statelessness; Convention relating to the Status of Stateless Persons; Convention relating to the Status of Refugees; Protocol relating to the Status of Refugees; and Declaration on the Human Rights of Individuals who are not nationals of the country in which they live.
War Crimes, Crimes Against Humanity and Genocide: we can find six instruments in this area: Convention on the Prevention and Punishment of the Crime of Genocide; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity; Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity; Statute of the International Tribunal for the Former Yugoslavia; Statute of the International Tribunal for Rwanda; and Rome Statute of the International Criminal Court.
Humanitarian Law: there are four very well known international instruments relating to international humanitarian law: Geneva Convention relative to the Treatment of Prisoners of War; Geneva Convention relative to the Protection of Civilian Persons in Time of War; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I); and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
This catalogue of international instruments on human rights reflects the importance accorded to human rights in international law and by the community of nations. The sovereignty dogma is diluted in the later part of 20th century and 21st century. The power of the sovereign state is subjected to the array of human rights instruments at the international level heralding a new era of individualism in which human beings take the center stage and state takes the back stage. If we look at the reality, efforts to protect human rights through international law have obviously not been totally successful; lots of human rights violations still occur today in all parts of the world. International human rights law is a work in progress, and has developed much farther than one could have expected initially.
Human Rights Law at Regional Level
At the regional level, we find several documents[100] adopted by various continents for protection of human rights. A perusal of the human rights instruments at the international and regional levels exhibits the enthusiasm of international community in expanding the province of human rights, in addition to creating ‘rights oriented’ societies. However, the enthusiasm exhibited in signing and creating these documents does not match with the articulation, structuralisation and delimitation of the concept of human rights. This has resulted incompatible regimes of human rights in various areas. For example, the human right to life and the human right abolishing death penalty even for those who have violated this very human right to life of others, not only brings about conflict between these two human rights but it also seriously jeopardises the human right to equality, for the right to life of a criminal is protected while the right to life of the victim goes unattended (though a lesser quantum of punishment is awarded to the violator of his right to life). The Lovelace case (1981) demonstrates how complex the issues of human rights are and how different articles of the Covenant can come into direct conflict.[101]
Regional human rights regimes are relatively independently coherent human rights sub-regimes that are nested within the larger frame work of International human rights regime.[102] There are three principle regional human rights instruments encompassing three continents, two developed and one underdeveloped. They are the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights. In other regions the development of human rights law is not so comprehensive and systematic as in these three regions.
Africa[103]
The African Charter on Human and Peoples’ Rights 1986 is the region’s principal human rights instrument and emerged under the aegis of the Organisation of African Unity (OAU).[104] The African Charter obligates ratifying countries to recognize the rights and duties listed and to adopt legislation or measures to bring them into effect (Article 2). The Charter is divided into two parts. The first part sets forth rights and duties and the second part establishes safeguards for them. The African Charter sets out not only rights but also duties of individuals (Articles 27–29). These individual duties, included perhaps to counter claims that human rights promote excessive individualism, are directed to family, society, state, and the international community. The African Charter explicitly posits group rights—the rights of peoples. Examples of such rights include the right of a group to freely dispose of its natural resources in the exclusive interest of its members (Article 21), and the right of a colonized or oppressed group to free themselves from domination (Article 20).
The Charter created an African Commission on Human and Peoples' Rights to promote and ensure the protection of human and peoples' rights in Africa (Article 30). The functions of the Commission are the promotion of human rights, the protection of these rights, interpretation of the African Charter, and the performance of “any other tasks” requested by the AU (Article 45). The Commission is also authorized to perform studies regarding problems in the area of human rights; formulate rules addressing human rights problems; investigate alleged human rights violations; prepare reports discussing human rights abuses; and make recommendations to the AU Assembly (Articles 45–54). Furthermore, states are required to submit regular reports to the Commission on their human rights problems and efforts to address them (Article 62).
The African Court of Human and Peoples’ Rights is now in operation in Arusha, Tanzania. The first election of its eleven judges occurred in 2006. The judges serve six-year terms and are permitted to serve two terms. The Court issued its first judgment concerning admissibility in 2009.
The African system has enormous human rights problems to address, frequently faces non-cooperation by governments, and has inadequate resources. But despite these problems the African Union seems to be slowly constructing international mechanisms to promote and protect human rights in Africa.[105]
America[106]
The Orgainisation of American States (OAS), is the oldest regional organization of states. In 1948, 21 states signed the OAS Charter, establishing the regional organization and affirming their commitment to democracy, liberty, and equality before the law. Article 3 of the OAS Charter recognizes the “fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” The Inter-American system has two main documents, the American Declaration of Rights and Duties of Man and the American Convention on Human Rights; and two main treaty bodies, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
Even before the UN adopted the Universal Declaration, the Organization of American States approved the American Declaration (1948). Like the Universal Declaration, the American Declaration encompasses the entire range of human rights. Additionally, the declaration includes an explicit list of duties, ranging from general duties toward society and one's children, to an individual's duty to vote, work, and pay taxes (Articles 29–38).
Despite its early beginnings, the Inter-American system of human rights progressed more slowly than its counterparts. Not until 1969 did the OAS adopt the American Convention on Human Rights, which entered into force in June of 1978. The Convention gave legal force to most of the rights established in the American Declaration with a commitment clause requiring states to adopt legislative or other measures necessary for full implementation of these rights. The Convention does not cover social rights. Those were subsequently added by the Protocol of San Salvador (1988).
The Inter-American Commission on Human Rights was established in 1959 and conducted its first investigation in 1961. The Commission is the first of two permanent bodies for promoting and protecting human rights in the Americas and consists of seven members elected by the OAS General Assembly who serve in their personal capacities.
The Commission's main functions include investigating individual complaints and preparing reports on countries with severe human rights problems. To this end the Commission is authorized to: receive and investigate individual petitions regarding human rights violations; publish reports regarding human rights situations in member states; visit member states and investigate general human rights conditions or particular problem areas; publish studies on specific subject areas, such as indigenous rights and women's rights; make human rights recommendations to member states; and submit cases to, or request advisory opinions from the Inter-American Court of Human Rights.
In 1979 the OAS adopted the Statute of the Inter-American Court of Human Rights, officially creating the Inter-American Court and defining its jurisdiction. The Court is authorized to interpret and enforce the Convention (Davidson 1997). The Court is composed of seven judges who serve a six year term as individuals rather than as government representatives. The Court's jurisdiction is limited to cases submitted to it by the Inter-American Commission on Human Rights or by the member states. The Court generally holds public hearings and delivers decisions in public sessions. Though the Commission was active earlier, The Court is active in protecting the human rights of the American peoples.
(c) Europe[107]
The Council of Europe, founded in 1949, is a regional organisation of Europe responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Council’s members to a code of human rights which, though strict, are more lenient than those of the United Nations charter on human rights. The Council promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states which seek European integration, accept the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms.
The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention and potentially the Council itself.
The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.
The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed the Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment (Article 3 of the Convention), the Committee for the Prevention of Torture was established.
The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals (rather than states). In early 2010 the court had a backlog of over 120,000 cases and a multi-year waiting list. About 1 out of every 20 cases submitted to the court is considered admissible. In 2007 the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.
Asia
There are no Asia-wide organisations or conventions to promote or protect human rights. Countries vary widely in their approach to human rights and their record of human rights protection. The Association of Southeast Asian Nations(ASEAN)[108] established in 2009–10 an Intergovernmental Commission on Human Rights. The Cooperation Council for the Arab States of the Gulf (CCASG)[109] and The Asia Cooperation Dialogue (ACD)[110] have no specific mandate to promote or protect human rights, but each has some human rights related economic, social and cultural objectives.
Oceania
There are no regional approaches or agreements on human rights for Oceania, but most countries have a well regarded human rights record. 2005 Pacific Plan incorporates the commitment to a plan of “defense and promotion of human rights” in the region. The idea of an institutionalized regional human rights framework is ongoing, with an objective to establish an ombudsman and security structures that goes beyond the Pacific Islands Forum.
Human Rights Law at National Level
The most important role that states play in international human rights law is in defining and establishing that law by creating and ratifying human rights treaties. Treaties are generally authored by committees of state representatives, and they are ratified by executive and legislative consent at the national level. Once a treaty is established, states help give it life by creating domestic legislation to implement it, conforming their conduct to its norms, and using it as a standard for domestic and international evaluation and criticism.
Almost all states are having human rights law in some form or the other. Some countries have specific human rights alw and some other states have incorporated human rights in their constitutions and yet others have it in both forms.[111] A positive law of human rights at the national level began to develop more or less in the middle of twentieth century, of course with a few exceptions such as the Magna Carta in the UK, the Bill of Rights in the USA and the French Declaration of the Rights. Early legal developments in the area of human rights are said to have emerged from the Magna Carta of 1215, a contract between the English King John and the Barons who were dissatisfied with the taxes being levied by the monarch. But, although this agreement guaranteed rights for a freeman not to be 'arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested...unless by lawful judgment of his peers and the law of the land', this guarantee was simply a right to trial by jury granted exclusively to property-owning men.[112] Though this is not a protection of human rights as understood in 20th century, this document is considered as the first national law on human rights. The English Bill of Rights of 1689 is similarly sometimes considered a stepping stone to today's texts. Parliament declared that 'no excessive fine be imposed; nor cruel and unusual punishment [be] inflicted'. It also stated, however, 'That the subjects which are Protestants, may have arms for their defense suitable to their conditions, and as allowed by law.' Like the Magna Carta, the Bill of Rights was in fact a political settlement; this time between a Parliament and the King (who had abused the rights of Protestants), in order to vindicate 'ancient rights and liberties'.[113] Incorporation in domestic law of international norms is found in the United Kingdom's Human Rights Act,1998 makes the norms of the European Convention part of the domestic law of the UK. Under this Act, a resident of the UK can bring a human rights claim in British courts under this Act instead of having to go to the European Court of Human Rights in Strasbourg, France.[114]
American Declaration of Independence 1776 incorporates human rights in the following statement: We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.' The French Declaration of the Rights of Man and of the Citizen followed in 1789, and its familiar first two articles recognized and proclaimed that 'Men are born and remain free and equal in rights' and that 'The aim of every political association is the preservation of the natural and inalienable rights of man; these rights are liberty, property, security, and resistance to oppression.' These revolutionary Declarations represent attempts to enshrine human rights as guiding principles in the constitutions of new states or polities.[115]
Almost all democratic societies have adopted this philosophy in their municipal legislations. Since the end of the Cold War, numerous states have formulated new or revised constitutions that include human rights. A sampling of these states includes Romania (1991), Slovenia (1991), Congo (1992), Lithuania (1992), Albania (1993), Russian Federation (1993), Moldova (1994), Tunisia (1995), Cameroon (1996), and Poland (1997) (See Alston 1999.)[116]
One important mechanism for state promotion of human rights is the creation of national human rights commissions. Their functions include educating people on human rights, promoting human rights, and advising local governments about human rights. Countries with national human rights commissions include Australia, Canada, Fiji, India, Ireland, Mexico, Nepal, the Philippines, and Uganda, to name a few.[117]
In the Indian Constitution a justiciable position is accorded to civil and political rights under Fundamental Rights (Part III), whereas economic, social and cultural rights were relegated to a non-justiciable position in Directive Principles of State Policy (Part IV). Fundamental Duties (Part IV-A) were added to the constitution in 1976. But these duties are only reflections of some cherished values and not the real jural correlatives of human rights. Civil and political rights have been provided priority over economic, social and cultural rights in many municipal legislations because of international description of these as first and second generation human rights respectively; and duties are undermined because they are not properly positioned in international instruments.
The human rights law, at the national level, is by and large adoption and application of international law of human rights. If some countries have taken lead in building international law of human rights, other nations have followed the international law already built up.
Hohfeld’s Concept and Its Relevance to Human Rights
Hohfeld in his monumental work entitled ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’[118] has provided a systematic analysis of the concept of right. If the province of the concept of human rights is to be properly determined, they should be appreciated in the light of normative jural relationships constructed by Hohfeld, of course keeping in mind the limitations inherent in the scheme. Like the general concept of rights, the conception of human rights can also be approached by looking into the functions performed by different kinds of legal material such as contract, tort, crime, property etc. and emerging areas such as obligations, intellectual property, environment, information technology etc. in the domain of human rights. The principal functions of legal material are to impose duties, and confer liberties, powers and immunities. These are also termed as ‘jural relations’ by Hohfeld. There are also supportive functions of legal material such as means of achieving legal ends, definitions, location of legal relationships and principles, doctrines and standards. In the first instance human rights will have to be identified in terms of the four principal functions of legal material. Many human rights such as right to life, fair trial, presumption of innocence, asylum, nationality, marriage, property, equality, work, education etc. are partly correlative of the duties imposed on others. Some of these rights will also contain the component of liberty. Several freedoms like movement, thought, conscience, religion, opinion, expression, association, assembly and participation in cultural life enunciated under human rights instruments vest liberties in the holders of these rights. Rights as to property, marriage, contractual relations, intellectual property confers powers on holders of these rights. Certain special rights of the state authorities and special categories of people are described as immunities. Some human rights are of composite type representing all or some of these varieties. To appreciate pluralistic and composite features of human rights, the Hohfeldian scheme is of considerable assistance. Relying upon on the contributions made by his predecessors, Hohfeld builds logical relationship of four rights along with its jural correlatives. The eight concepts (four rights and four correlatives of these rights) are arranged in two rectangles in a fascinating relationships known as jural correlatives, jural opposites and contradictories of correlatives. These relations are presented in the diagram as under:
|
|
Vertical arrows connote jural co-relationship. Example, existence of ‘right’ in one person implies the existence of ‘duty’ in another person. Diagonal arrows connote jural opposition. Example, existence of ‘right’ in one person implies the absence of ‘no-right’ in the same person. Horizontal arrows connote jural contradiction. Example, existence of ‘right’ in one person implies the absence of ‘liberty’ in another person. Every concept in each rectangle has these three types of relations with the other concepts.
The conception of human rights and the catalogue of human rights in various national and international instruments are not based on the scheme formulated by Hohfeld. Operationalisation of human rights law is becoming difficult due to lack of proper identification of means of achieving legal ends, formulating definitions, locating legal relationships and evolving required principles, doctrines and standards. A cursory look at the catalogue of human rights reveals a number of overlapping regimes of the four kinds of rights, conflicts between the rights and their jural correlatives, existence of jural opposites together and existence of contradictory rights in two persons. Therefore, unless it is clearly specified which is the type of human right conferred and what is its jural correlative, it becomes difficult to administer human rights effectively.
While conferring any human right on individuals, care should be taken to prescribe its jural correlative in the other person or persons including the state so as to make the concerned right operational. For this purpose, identification of the nature of that right is necessary. It should be first determined whether the human right proposed to be conferred on individuals is a right in the strict sense, liberty, power or immunity. Thereafter the concerned jural correlative should be prescribed for the other person or persons towards whom the right is made available. If the right to be conferred is of a complex nature involving more than one kind of rights, it must be properly dissected before prescribing jural correlatives for others. If the nature of complexity of the proposed right is such that it is inseparable, then that nature should be clearly stated before prescribing its jural correlatives. A mere pronouncement of human rights without prescribing appropriately its jural correlatives will not only make that right ineffective but will also become a source of confusion in the process of administration of justice. The magnitude of this confusion will be more in the administration of criminal justice, for human rights conferred on individuals quite often conflict with the rights of the state to do the opposite. For instance, an individual’s human right not to be subjected to arbitrary arrest, detention or exile may not be effective unless specific restrictions are imposed on the state machinery's right in this regard, and restrictions imposed should be not of such a nature as to adversely affect the investigative process of crimes.
The human rights conferred on individuals should be clearly defined. If the boundaries of the right are not properly fixed, it may become another source of confusion. For instance, an individual’s human right to be presumed innocent until he is proved guilty in accordance with law will have to be circumscribed by limiting the presumption in actions like dowry death and custodial rape etc.
Another important aspect that should be kept in mind while structuring human rights is that ‘duty’ and ‘power’ are independent concepts and others are derivatives. If derivatives like ‘claim’ or ‘right in the strict sense’ are structured as independent human rights and their jural correlative ‘duty’ as a derivative, it may become a source of confusion. Rights so evolved will be structurally defective.
Some of the defects in the Hohfeldian scheme of rights should also be carefully considered along with critiques and suggestions made by other jurists to improve the scheme.[119] As stated by jurists, it is important to apply the Hohfeldian analysis to social and political slogans such as fundamental rights, rights of man, women’s rights, prisoners’ rights, animal rights, workers’ rights and so forth. Thus, any discussion of a legal framework for various types of relationships involving human rights—many social and political slogans stated above come within the framework of human rights—should surely begin with precise analysis of the different concepts that are involved.[120]
Concluding Remarks
Whenever the human rights of individuals are violated by subjecting the concerned to torture, exploitation, neglect, denial, humiliation and repression, it is not merely because of socio-psychological factors; it is as much because of the advantage gathered by a ‘bad man’ of the structural and conceptual deficiencies of human rights. This necessitates a clear jurisprudential framework for the concept of human rights so that the law of human rights is not misused. It is rather easy to declare every value and beneficial idea as a human right, for it costs nothing for the administrators of the society. But to reduce these declared human rights into real workable jural propositions requires fine-tuning of these declarations. This may help in bringing about an attitudinal change in the participants of the process of guaranteeing human rights as also the deviants. Some clues for re-conceptualisation of human rights are provided here.
Human rights, like general rights are pluralistic in nature. Narration of any particular human right should be carefully done to represent this nature. For example, right to life is not just a right to live. It is a right to live a decent life of a civilized human being. It includes right to nutritious food, right to health and hygiene, right to education and so on. The right to life is a journey. Milestones of this journey are to be identified and narrated by knitting them together in a coherent manner.
Secondly, rights are also pluralistic in another sense. A single right may consist of a claim type of right, a liberty, a power and an immunity. In other words it may appear like a single right but represents many. This needs to be described accordingly.
Thirdly, Human rights represent at least three generations. These generations should not be considered as three strict compartments. There is always a possibility of their crossing over from one to the other in the contemporary world. Moreover, they are integrated. Collective right to environment or development is closely related to the right to life. We will not be able to protect the life of human beings in a degraded environment. Re-conceptualisation should take care of this aspect also.
Fourthly, as every right has its jural correlatives, opposites and contradictories, this should hold good for human rights, of course with all the deficiencies that are found in Hohfeld’s analysis.
Fifthly, there is a problem of incompatibility. Right to life, liberty equality and dignity are the starting notions of human rights and are challenged in the deconstruction era, by the critical, post-modern, racial, feminist and pluralistic approaches that human rights are not universal and general, but are pluralistic and divergent, by basing their arguments on the special nature of certain human beings, difference in the levels of civilizations, and Different philosophical perspectives have narrated the identity and implication of human rights (as they have rendered it with the narration of the concept of law) differently. But some common denominators may be plausible.
Any human rights theory must attempt to narrate the journey of human rights as a very tough, grueling and difficult but yet very useful, fruitful and necessary journey. In this journey, we come across all those milestones, which may make us ‘feel’ what it is all about human rights. To define human rights, as philosophers agree, is to identify what is it that makes it human rights and what are those things that necessarily found in human rights that make those things human rights. This is the way the province of the concept of human rights is to be determined.
Can it be something like this? “Human rights are those rights, which are attached to the human being because he is a human being. Because he is a human being (Rational, Social, Political, etc, animal), he has certain inherent rights (to life, liberty, dignity, equality, etc) that are perceived (moral normative, analytical normative) along the side of evolution of human civilization, widening its net to encompass almost everything that is connected with the nature of human being.”
J. S. Patil*
* Professor, Chairman and Dean, P. G. Department of Law, Gulbarga University, Gulbarga; and Former Vice Chancellor, Karnataka State Law University, Hubli
[1] Amarthya Sen, 32 Philosophy and Public Affairs, 2004, p.319.
[2] Wacke Raymond, Philosophy of Law: A Very Short Introduction, Oxford, 2006, p.52.
[3] Alon Harel, “Theories of Rights”, in Martin P. Golding and William A. Edmundson (Ed), The Blackwell Guide to Philosophy of Law and Legal Theory, 2005, p. 191.
[4] Dworkin R., Taking Rights Seriously, 1977, p.86.
[5] Ibid., pp.90-91.
[6] Hart is its main propagator. For details see (1955) 64 Phil. Rev., p.175..
[7] Lloyd, Introduction to Jurisprudence, 8th Ed., Freeman M. D. A. (ed.), 2008, p. 394.
[8] Founder is Bentham followed by Jhering, MacCormic, Raz, Lyons Campbeel, etc.
[9] Lloyd, Op. Cit., pp.395-396.
[10] Salmond John, Jurisprudence, 4th Ed., 1913, p.181
[11] Ibid, pp.396-398.
[12] For a detailed analysis, see, Salmond, Op. Cit., pp. 197-218
[13] Wacke, Op. Cit., pp. 55-56.
[14] Ibid., p. 57.
[15] Universal Declaration of Human Rights, 1948
[16] 32 Philosophy and Public Affairs, 2004, p.315.
[17] Wacke, Op. Cit., p 58.
[18] http://en.wikipedia.org/wiki/Human_rights?oldid=628338080 retrieved on October 25, 2014.
[19]. Dias, R.W.M.: Jurisprudence, 5th Ed., 1985, Butterworths, London, pp. 72-73.
[20] Clapham Andrew, Human Rights: A Very Short Introduction, Oxford, 2007, p. 5.
[21] Gharpure J. R., Yajnavalkya Smriti with Mitakshara of Vijnaneshwara, A Note on Hindu Law Texts, p. i
[22] Menski W., Comparative Law in a Global Context, 2nd Ed.,2006, p.211.
[23]Loy David R., “A Different ‘Enlightened Jurisprudence”, 54 Saint Luis University Law Journal, 2010, p. 1243
[24] Numerical Discourses of Buddha: An Anthology of Suttas From Anguttara Nikaya, Nyanaponika Thera & Bhikku Bodhi (eds. & trans.) 1999, p.14.
[25] Loy, Op. Cit., p.1244.
[26] As per Angulimala Sutta, he was a merciless bandit and a serial killer; when he encountered Buddha, he fails to walk as fast as Buddha because he has not stopped killing. Buddha advises him to stop the evil and he reforms himself and becomes Bikku.
[27] Ronnie Earle, Restorative Justice Restores Power to Communities, TIKKUN Sept.–Oct. 2009,
p.19, http://www.tikkun.org/article.php/sept_oct_09_earle .
[28]. See works of Socrates, Plato & Aristotle.
[29] Menski W., Op. Cit., p. 137.
[30] Lloyd, Introduction to Jurisprudence, 8th Ed., Freeman M. D. A. (ed.), 2008, p.98.
[31] Menski, Op. Cit., pp. 138-139.
[32] Loy, Op. Cit., p. 1248.
[33] Ibid., P 139
[34]. Dias, R.W.M.: Jurisprudence, supra n. 1, pp. 76-77.
[35] Menski, Op. Cit., p. 142.
[36] Friedmann W., Legal Theory, 2008, p. 109.
[37] Menski, Op. Cit., p.144-145.
[38]. Dias R. W. M., Op. Cit.,p.78.
[39] Lloyd., Op. Cit., p. 102.
[40] Menski, Op. Cit., p. 147
[41] Friedmann, Op. Cit., p. 114.
[42] Ibid., pp. 121-122.
[43] Menski, Op. Cit., p.149.
[44] Wacke Raymond, Philosophy of Law: A Very Short Introduction, Oxford, 2006, p.8.
[45] Clapham Andrew, Op. Cit.,pp. 8-9.
[46] Friedmann, Op. Cit., pp.129-131; Menski, Op. Cit., Op. Cit., p. 150; Lloyd. Op. Cit., pp. 114-117.
[47] Friedmann, Op. Cit., pp. 157-161.
[48] Ibid., pp. 161-164.
[49] Ibid., pp. 164-170
[50] Wacke, Op. Cit., p.10.
[51] M. Macdonald, Natural Rights, 1948, pp.44-47.
[52] Lloyd, Op. Cit., pp122-123.
[53] Hart H. L. A., The Concept of Law, 2nd Ed., 1961, pp.193-200.
[54] Finnis J., Natural Law and Natural Rights, 1980, p. 198.
[55] Murphy, Natural Law in Jurisprudence and Politics, 2006, p. 208.
[56] Margaret Mead, “Some Anthropological Considerations Concerning Natural Law”, 6 Natural Law Forum, pp.51-64.
[57] For further details see, Rawls J., The Law of Peoples, Harvard University Press, Cambridge, 1999.
[58] For details see, Rawls J., A Theory of Justice, Harvard University Press, Cambridge, 1971.
[59] The Idea of Human Rights, Oxford University Press, Oxford, 2009.
[60] Limits of Jurisprudence Defined, Everett C. H. (Ed), 1945.
[61] Lloyd, Op. Cit., p. 254.
[62] Austin J., Lectures on Jurisprudence, pp. 1072-1075.
[63] Jurisprudence, 1st Ed., 1902.
[64] Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1913.
[65] See Pound, “Fifty Years of Jurisprudence”, 50 Har.L.Rev., 1937, p.571.
[66]. Kaul, J.L. (Ed.): Human Rights (Regency, New Delhi, 1995), p. 7.
[67] Friedmann, Op. Cit., p. 270.
[68] Lloyd, Op. Cit., pp.309-310.
[69] For details see Hart H.L.A., Op. Cit.
[70] For a lucid presentation of his rights thesis, see Dworkin Ronald, Taking Rights Seriously, 2008.
[71] Wacks, Op. Cit., p.48.
[72]. Dias, R.W.M.: Jurisprudence, supra n. 1, pp. 436-439.
[73] Jacques Lacan and Jacques Derrida are the important contributors to this thought. See Wacks, Op. Cit., pp. 97-100.
[74] Divisions are made by different authors differently. For eg.,Patricia Smith categorises feminism as Difference, Dominance, Domesticity and Denial. For details see Chapter 6 in Martin P. Golding and William A. Edmundson (Ed), Op. Cit, 2005, pp. 90-104
[75] Catharine MacKinnon, Carol Smart, Christine Littleton and Ann Scales belong to this tradition; See Wacks, Op. Cit., pp.102-104.
[76] Drucilla Cornell, Francis Olsen and Katherine Bartlett are the protagonists of these ideas; see Ibid, pp. 104-105.
[77] Thus Carol Gilligan, a psychologist, demonstrates how women’s moral values tend to stress responsibility, whereas men emphasize rights. Women look to context, where men appeal to neutral, abstract notions of justice. In particular, she argues, women endorse an ‘ethic of care’ which proclaims that no one should be hurt. This morality of caring and nurturing identifies and defines an essential difference between the sexes.
[78] Ibid., p. 105.
[79] Ibid., p. 106.
[80] Murungi, John “The Question of African Jurisprudence: Some Hermeneutic Reflections” in A Companion to African Philosophy, Edited by Kwasi Wiredu, Malden Massachusetts: Blackwell Publishing Limited, 2004, p. 525.
[81] Ibid., p. 523.
[82] William Edowu, “ Against the Skeptical Argument and the Absence Thesis: African Jurisprudence and the Challenge of Positivist Historiography,” Volume 6, July 1, 2006
www.miami.edu/ethics/jpsl, p. 43
[83] Kamali M. H., Principles of Islamic Jurisprudence, 1991, p.17.
[84] Abdullahi Ahmed An-Na’im, “Globalisation and Jurisprudence: An Islamic Perspective”, Emory Law Journal, Vol.54, pp.25-51.
[85] Kamali M.H., Op. Cit., p.8.
[86] Clapham Andrew, Op. Cit. pp. 24-25.
[87] For details see Ibid., pp.25-27.
[88] Bobbitt Philip, “Public International Law”, in Dennis Patterson (Ed), A Companion to Philosophy of Law and Legal Theory, 2nd Ed., Wiley-Blackwell, 2010, pp.112-113.
[89]. Jaswal, P.S. and Jaswal, N.: Human Rights and the Law (APH, New Delhi,1996), p. 37.
[90]. Ibid. at 46.
[91]. Ibid. at 56.
[92] http://en.wikipedia.org/wiki/United_Nations_Human_Rights_Council retrieved on October 25, 2014.
[93] Clapham Andrew, Op. Cit. p.49.
[94] Ibid., p.50.
[95] Ibid.
[96] Ibid.
[97] Ibid., p.51.
[98] Ibid
[99] Ibid
[100]. These are: the European Convention on Human Rights (1971); the European Social Charter (1961); the Inter-American Convention on Human Rights (1969); the African Charter on Human Rights (1981); and the Convention of Commonwealth of Independent States on Human Rights adopted by the States which were part of erstwhile Soviet Union.
[101]. See Kaul, J.L. (Ed.): Human Rights, supra n. 5, p. 68.
[102] Donnelly, Jack (2003). Universal human rights in theory and practice (2nd ed. ed.). Ithaca: Cornell University Press. p. 138.
[103] http://en.wikipedia.org/wiki/Regional_human_rights_regimes? Accessed on October 25, 2014.
[104] In 2000 the Organization of African Unity transformed itself into the African Union. The Constitutive Act, whereby this was accomplished, reaffirmed Africa's determination “to promote and protect human and peoples' rights.”
[105] Regional Human Rights Regimes, retrieved on October 25, 2014.
[106] http://en.wikipedia.org/wiki/Regional_human_rights_regimes? Accessed on October 25, 2014.
[107] Ibid.
[108]It was originally formed in 1967 with 10 countries located in Southeast Asia consisting of Indonesia, Malaysia, the Philippines, Singapore and Thailand. The organization now also includes Brunei, Vietnam, Laos, Myanmar and Cambodia.
[109] It is a trade bloc involving the six Arab states of the Persian Gulf formed in 1981 comprising the Persian Gulf states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.
[110] It is a body created in 2002 to promote Asian cooperation at a continental level, helping to integrate the previously separate regional organizations of political or economical cooperation.
[111] India has human rights enshrined in the constitution in the form of fundamental rights and directive principles of state policy and also has a specific human rights legislation: Protection of Human Rights Act, 1993.
[112] Clapham Andrew, Op. Cit. p.6.
[113] Ibid.
[114] Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/rights-human/ retrieved on October 25, 2014.
[115] Clapham Andrew, Op. Cit., p. 10.
[116] Stanford Encyclopedia of Philosophy, Supra n. 114.
[117] Ibid.
[118]. See, Freeman, M.D.A.: Lloyd’s Introduction to Jurisprudence, (6th Edn., Sweet & Maxwell, 1996), p. 494.
[119]. Dias, R.W.M.: Jurisprudence, supra n. 1, pp. 40-42.
[120]. Id.
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